Are "medicinal mushrooms" a medicine and do they help with coronavirus? The Regional Court of Giessen has taken a position on misleading coronavirus advertising by an online retailer.
A competition association took legal action against an online retailer. Among other things, the retailer's website described the healing properties of so-called "medicinal mushrooms". In addition to seminars, some of which were paid for and some free of charge, the retailer also offered books on the subject of medicinal mushrooms for sale.
During the coronavirus pandemic, the retailer placed a COVID-19-related advertisement on its website. Below the headline "CORONA INFECTION: How we can protect ourselves with medicinal mushrooms!" was an embedded video file. Seminars on the topic of "Corona" were also offered.
A competition association then issued a warning to the online retailer for violating the German Drug Advertising Act (HWG) in relation to the coronavirus advertising. However, the retailer refused to issue the required cease-and-desist declaration with a penalty clause. Finally, the competition association sued for injunctive relief.
Vital mushrooms are medicinal products
The Gießen Regional Court (Decision of 06.04.2020, ref. 8 O 16/20) deemed the online retailer's coronavirus advertising to be misleading and therefore anti-competitive. First of all, the judges found that the relevant standards of the HWG are market conduct rules within the meaning of competition law. Violations of the HWG can therefore be sanctioned under competition law.
The court found such a violation of the HWG. The prerequisite for misleading advertising within the meaning of the HWG is first of all that the medicinal mushrooms are to be classified as medicinal products within the meaning of the HWG. In particular, a medicinal product is also deemed to exist if the product in question is only intended for use in the human body for the purpose of curing, alleviating or preventing diseases or pathological complaints ("presentation medicinal product").
According to the court, a considerable number of consumers assume that the "medicinal mushrooms" are intended for use for therapeutic purposes, meaning that they are a medicinal product.
Corona advertising is misleading
The Gießen Regional Court also classified the retailer's coronavirus advertising as misleading. According to the HWG, misleading advertising exists in particular if medicinal products are attributed therapeutic efficacy or effects that they do not have. According to the judges, such a statement as in the corona advertising at issue would only be permissible if it was based on proven scientific knowledge.
However, it is common knowledge that, with regard to the disease caused by the COVID-19 pathogen, there is currently no reliable scientific evidence as to whether or not certain substances offer protection in the event of infection. In this state of scientific knowledge, any advertising for a product that expresses protection against COVID-19 is prohibited by the HWG.
Conclusion
In general, great caution should be exercised when advertising medicinal products. As the ruling shows, this applies in particular to all substances that are said to have a positive effect with regard to COVID-19 disease.
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